Shaw (Migration)

[2024] AATA 4041

Shaw (Migration) [2024] AATA 4041 (9 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daniel Hamlet Shaw
Mrs Jodie Shaw

CASE NUMBER:  2200946

HOME AFFAIRS REFERENCE(S):          BCC2019/5428436

MEMBER:Peter Emmerton

DATE:9 October 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 09 October 2024 at 11:27am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Café or Restaurant Manager – no approved nomination – nomination withdrawn – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 January 2022 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 October 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of café or Restaurant Manager, ANZSCO 141111, Skill level 2.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicant appeared before the Tribunal, via Teams video, on 9 October 2024 to give evidence and present arguments. The secondary applicant Mrs Shaw also gave evidence.

7. The applicant was not represented in relation to the review however, they had been represented prior to the hearing.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination has been refused.

10. The Tribunal has read and carefully considered all the evidence presented to the delegate and the Department prior to the delegate’s decision.

11. The Tribunal has read and carefully considered all the material before it prior to this decision.

    Nomination of a position

12. On 10 March 2020, the nomination linked to this visa, lodged by Creative Hospitality Consultants Pty Ltd, being the nomination referred to in relation to paragraph 186.223(1), was refused by a delegate of the Minister for Home Affairs.

13. On 10 March 2020 a Natural Justice letter was issued to the visa applicant, by the Department, indicating the nomination had been refused which meant that the visa application could not be approved. The applicant was provided 28 days to respond. They did so respond on 26 April 2021. No response was provided in relation to the nomination not being approved.

14. The nominator sought a review by the Tribunal. On 4 March 2024 a letter was received from the liquidator withdrawing from the review process.

15. On 24 April 2024 the Tribunal finalised the decision withdrawing the nominator from the review. Therefore, it remains that there is no approved nomination affiliated with the visa under review.

16. On 25 January 2021 the visa applicant sought a review before the Tribunal which took place 9 October 2024. It was explained to the applicant at the hearing that if the nomination has been refused, criterion 186.223(2) is not met and subsequently nor could his visa be approved. The applicant expressed dissatisfaction that the review had taken so long and that they had been disadvantaged because the approval process with the Department in conjunction with the delayed review process before the AAT, had be meant that the nominator was no longer operating. The Tribunal appreciates the process from application for the visa to review by the AAT has taken 5 years and this delay, quite reasonably, is not considered fair by the applicant.

17. The Tribunal accepts as correct the reason the restaurant was closed was outside of the applicant’s control.

18. The Tribunal has sympathy for the plight of the visa applicants. It explained it has no discretion in this matter. If there is not an approved nomination attached to the visa, the visa can-not be approved. The Tribunal observed during the hearing the applicant has followed the directions relating to the visa in an appropriate manner and the circumstances facing he and his wife are not a reflection upon their honest approach.

19. Accordingly, since the nomination appointment to which the visa application made by Mr Shaw relates has not been approved, the applicant does not meet regulation 186.223.

20. No evidence has been provided to the Tribunal which indicates an approved nomination linked to this visa application exists. The applicant was asked if he had such evidence during the hearing, to which he replied in the negative.

21. The applicant cannot satisfy cl.186.223 by demonstrating that an approved nomination linked to their visa application exists, therefore the Tribunal must affirm the decision of the Department of Immigration and Border Protection refusing the visa.

22. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 186.223(2) of Schedule 2 of the Regulations. Therefore, cl.186.223 is not met.

23. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

24. The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Peter Emmerton

    Member

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.